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Lisbon Court of Appeal | Arbitration in Medicine Patents Disputes | Mandatory Arbitration | Competence of the Arbitral Tribunal to Hear Claim on the Invalidity of the Patent| Case #110

Case nr. 772/19.9YRLSB-6


I- The mandatory arbitral tribunal provided for in Law No. 62/2011 shall have jurisdiction to examine, by way of a limited exception to a peremptory rule, the question of the invalidity of the patent or Supplementary Protection Certificate relating to the medicines, where such invalidity is argued as a defence, and where the effect of such a determination is limited to the concerned parties.

II-The Constitutional Court acknowledges that not all restrictions on the principles of adversarial proceedings necessarily imply a violation of Article 20 of the Constitution. However, Article 35 of the Industrial Property Code (stating that the validity of patents can only be adjudged by State Courts) is excessive insofar as it disproportionately prejudices the right of the applicant to a defence. Consequently, it must be judged unconstitutional for violating Article 20 of the Constitution, which prohibits defencelessness (read in conjunction with Article 18(2)).

Summary and headlines kindly prepared by Avani Agarwal (final year law student at NALSAR University of Law, Hyderabad, India; Avani Agarwal may be contacted by email:

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